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With regard to the G20 protest camp, the law of assembly must be applied by way of precaution - However, restrictions may be imposed

Press Release No. 51/2017 of 28 June 2017

Order of 28 June 2017 - 1 BvR 1387/17

In an order published today, the Third Chamber of the First Senate of the Federal Constitutional Court, by way of preliminary injunction, assigned to the City of Hamburg the task of deciding, under the law of assembly, on whether to allow the planned protest camp in the city park. The decision of the Chamber is based on a weighing of consequences. 

Not at issue in this decision is the question of whether and to what extent the protest camp can be restricted or even banned with regard to public safety.

Facts of the case:

The applicant registered a planned event, which is to take place from 30 June to 9 July 2017 in the form of a political protest camp on the fairgrounds of Hamburg’s city park. The applicant is the event’s designated leader. About 10,000 people from around the globe are expected, and they are to live and sleep in 3,000 tents. For its duration, the camp is to represent a place of ongoing, noticeable protest by day and night against the meeting of the heads of state or government of the group of the twenty major industrial countries and emerging economies (G20 Summit). 

The Free and Hanseatic City of Hamburg did not classify the scheduled protest camp as an assembly and banned the event with reference to a prohibition under park law to camp in public park and recreation areas. The administrative court called upon to review the ban imposed the obligation on the city to allow the protest camp to be set up, pending a decision by the City in accordance with the law of assembly. Following the City’s complaint, the Higher Administrative Court rejected the applicant’s request for review on the grounds that the protest camp was not the type of assembly protected under Art. 8(1) of the Basic Law (Grundgesetz – GG). In filing the application for a preliminary injunction at the Federal Constitutional Court, the applicant continues to pursue his objective that the City of Hamburg be obliged to allow the preparation, construction and realisation of the protest camp. 

Key Consideration of the Chamber:

1. The Federal Constitutional Court may provisionally decide a matter by way of preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence, or for other important reasons in the interest of the common good (§ 32(1) Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG). The prospects of success in the principal proceedings must not be taken into consideration unless the application filed in the principal proceedings is inadmissible from the outset or manifestly unfounded. If the outcome of the principal proceedings remains open, the Federal Constitutional Court must undertake a weighing of consequences. 

2. The constitutional complaint is neither inadmissible from the outset nor manifestly unfounded. Rather, it raises difficult questions which have not yet been clarified in the case-law of the Federal Constitutional Court, and which cannot be conclusively assessed in the course of preliminary proceedings. Accordingly, it is yet unclear whether and to what extent the protest camp is protected as an assembly pursuant to Art. 8(1) GG. 

Consequently, a decision must be made based on the weighing of consequences, the outcome of which is partly in favour of the applicant. 

If the preliminary injunction were not issued and it was found in the principal proceedings that at least parts of the protest camp were protected by the freedom of assembly and were, therefore, at least generally permissible, then the applicant would be, as things stand now, barred from making use of his fundamental freedom of assembly in the form of realising the protest camp. Thereby, his freedom of assembly would be lastingly devaluated with regard to a major political event that is particularly prominent. 

If, in contrast, the preliminary injunction were issued and the City of Hamburg were obliged to allow the construction, operation and dismantling of the protest camp between 28 June and 11 July 2017 and it was found in the principal proceedings that the planned protest camp was not protected by the freedom of assembly, then not only would the public have been unjustifiably deprived of a recreation area for the duration of about three weeks, but public authorities would also, and without any reason, have been burdened with the risk of permanent damage to the park. 

Weighing these respective disadvantages against one another, a compromise settlement is required within the framework of injunctive protection that enables the applicant to realise the protest camp on the occasion of the G20 Summit to the largest possible extent while preventing permanent damage to the city park and minimising the related risks for public authorities. Consequently, it must be ordered that, as a precaution, the authority deciding on the assembly must apply the law of assembly to the protest camp planned by the applicant. In doing so, the authority is to be provided with an appropriate scope for decision-making which entitles it – where possible, in cooperation with the event organiser – to limit the dimensions of the camp and also to impose restrictions in such a way that severe impairment of the city park due to permanent damage can be sufficiently ruled out. If this is not possible in a way that corresponds to the applicant’s objective – which seems quite possible according to the files and which can, for the rest, occur particularly in light of safety interests (which are not yet considered in this case) –, the authority can instead assign a different place for realising the planned protest camp that comes as close as possible to achieving the impact of the applicant’s objective. In this respect, too, the authority can impose restrictions that prevent as much damage as possible to the area of the substitute location, even limiting the dimensions of the scheduled protest camp, if necessary. In doing so, the authority can also consider to what extent the camp’s intended extensive elements of infrastructure are necessary to support elements of political assembly unquestionably inherent in the camp and to what extent they exceed them. In particular, the authorities are entitled to prohibit the construction of such tents and facilities which are, without relation to the expression of opinions, intended only as accommodation for persons who wish to participate in assemblies elsewhere. 

As the present order addresses only the legal issues presented in the initial proceedings, questions concerning potential threats arising from the planned event are left aside. The authorities remain free to make further decisions concerning this matter, particularly with regard to ensuring public safety, keeping in mind the general constitutional standards. If and to what extent the authorities can, considering these aspects, impose further restrictions on the protest camp or even prohibit it, is not at issue in this decision.